On August 3, 2015, the U.S. Environmental Protection Agency (EPA) released the Clean Power Plan (CPP) Rule for the reduction of carbon dioxide emissions from existing electric generating units. In addition to being one of the most complex rules in EPA history, the CPP required all states, including New Jersey, to rapidly develop compliance plans as early as 2016.

Given the immediate compliance requirements imposed on New Jersey, in October 2015 the NJ Clean Air Council (CAC) decided to focus its 2015-2016 efforts on providing the New Jersey Department of Environmental Protection (DEP) with a comprehensive set of recommendations on the major aspects of CPP implementation, as well as stakeholder concerns that should be addressed in order to develop a compliance plan for New Jersey. The CAC worked hard to learn and understand the complex requirements of the CPP, identify implementation issues, obtain stakeholder perspectives, and develop implementation recommendations. As part of that effort, the CAC held a public hearing on April 28, 2016 to obtain testimony from state regulatory agencies, experts in the field, and non-governmental organizations, including environmental groups and an environmental justice representative.

On October 23, 2015, following EPA’s publication of the CPP, the Christie Administration joined with other states, now numbering 28, in seeking to have the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) overturn the CPP. At the time the suit was filed, the CPP was in effect, with compliance deadlines imposed on New Jersey.

On February 9, 2016, after the CAC had determined their objectives for the annual public hearing scheduled for April 28, 2016, the United States Supreme Court (SCOTUS) stayed the CPP rule pending the outcome of the litigation before the D.C. Circuit and the disposition of any subsequent petition for certiorari (1) to SCOTUS. Oral argument was originally scheduled for June 2nd. At that time, it still appeared that a court ruling could be imminent and the outcome of the ruling could be reflected in the CAC’s annual report.

On May 16, 2016, however, after the CAC’s public hearing, the D.C. Circuit decided that it would hear oral arguments en banc (2) and scheduled the hearing for September 27, 2016. Parties to the litigation, both for and against the rule, have stated their intention to petition SCOTUS if the D.C. Circuit does not issue a decision in their favor. If SCOTUS grants a petition for certiorari, then pursuant to its February 9th order, the stay will continue. Assuming certiorari is granted, the outcome of the CPP litigation by states and other parties will likely not be known until well into 2017. This leaves much uncertainty about the future of the rule. It could be left intact, it could be remanded to the EPA for revision, or it could be invalidated in its entirety. In light of this uncertainty, and the delays in litigation, it has become increasingly clear that the stay of the CPP could continue for as long as several years. Accordingly, the CAC has decided it would be premature to provide DEP with recommendations on the implementation of the CPP.

The CAC sincerely thanks all the speakers and organizations that participated in this process. The CAC believes that the information and opinions obtained from our speakers, experts and interest groups will still be valuable for future consideration. To that end, the transcript of our April 28, 2016 public hearing, summaries of testimony and of presentations from our speakers, and relevant CPP information, issues and hyperlinks to analysis reviewed by the CAC through September 14, 2016 can be found elsewhere on our website.

It is the CAC’s intention that once the litigation is finally resolved, the Council will reconsider the CPP, or any successor to the CPP, at a future hearing.

(1)An order by which a higher court reviews the ruling of a lower court.

(2)A session in which a case is heard before all the judges of a court (before the entire bench) rather than by a panel of judges selected from them.

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